NoiseTrade Author Agreement
This Author/Publisher Agreement ("Agreement") is made between the individual, publisher, or rights holder identified in the "Author/Publisher Login" pages of the NoiseTrade Web Site located at http://www.noisetrade.com ("Author/Publisher") and NoiseTrade, a Nashville, Tennessee based company ("NoiseTrade").
Whereas, NoiseTrade is committed to promoting the fair trade of music, ebooks and other content by and for authors and fans via the Internet, and the NoiseTrade Web Site (the "Site") offers authors and publishers the opportunity to promote their digital content and fans the opportunity to download music, ebooks and other digital files on the Site, as well as on other sites designated by authors and fans (collectively the "Services").
Whereas, Author/Publisher desires to promote and sell his/her Materials (as that term is defined below) through the Services and by checking the box marked "I have read and agree to NoiseTrade's Author/Publisher Agreement" agrees to be bound by the terms and conditions of this Agreement.
In consideration of the mutual promises and upon the terms and conditions set forth below, the parties agree as follows:
Author/Publisher hereby grants to NoiseTrade, and NoiseTrade hereby accepts, the limited, royalty-free, transferable, nonexclusive right during the term of this Agreement (with the right to sublicense) to use, reproduce, distribute, and publicly perform and/or display all names, biographical materials and likenesses, musical compositions, sound recordings, artwork, text, pictures, graphics, video, and all other materials submitted by Author/Publisher to NoiseTrade for use with the Services (collectively "Materials"), for the purpose of advertising and promoting NoiseTrade and for other purposes of fulfilling its obligations under this Agreement.
Author/Publisher represents and warrants to NoiseTrade that Author/Publisher is familiar with the functionality of the Services, including aspects that allow users to upload access to the Materials on any web site of NoiseTrade's choice thereby allowing other users to stream, download and/or share the Materials with other users.
Author/Publisher shall be solely responsible for and shall hold NoiseTrade harmless from any and all obligations in connection with the use and exploitation of the Materials as contemplated in this Agreement, including, without limitation, licenses and payments related to copyright, patent and other intellectual property rights associated with file formats and file compression associated with the digital transmission of music and ebooks and other digital files and public performance of sound recordings and musical compositions via streaming and downloading.
In that regard, Author/Publisher hereby represents and warrants on a continuing basis that: (a) Author/Publisher owns or has secured all necessary rights to publish, reproduce, distribute, display, perform publicly, transmit, sell, promote or otherwise exploit the Materials and perform publicly the Materials and the underlying written, recorded or musical compositions, as contemplated in this Agreement; (b) Author/Publisher owns or has secured all rights necessary to allow NoiseTrade to perform the Services and exploit the Materials described in this Agreement and to exercise and fulfill NoiseTrade's rights and obligations hereunder; (c) Author/Publishers will comply with and make payment of any and all obligations it may have under third party agreements or the law, including, without limitation, author royalties, artist royalties, producer royalties, union fees, mechanical royalties and public performance royalties for the Materials that arise from or in any way relate to the usage of the Materials as contemplated under this Agreement; and (d) the Materials do not and will not violate or infringe upon any right of any third party, including without limitation copyright, trademark and patent rights, rights of privacy or publicity, nor do they contain any libelous, slanderous, defamatory, offensive, obscene, pornographic or unlawful material, nor otherwise violate or infringe any other right of any person or entity.
Author/Publisher signup will be a non-paid process for use of one active widget.
NoiseTrade and Author/Publisher shall also share in revenues actually collected by NoiseTrade from users of the Services who access, download or share Author/Publisher's Materials as follows: For each download by any user of a sound recording in the "tip jar" category, Author/Publisher shall receive 80% of the revenue and NoiseTrade shall receive 20%. In addition, Author/Publisher shall pay NoiseTrade a fee for each "tip jar" category credit card transaction that results in the download of a sound recording in the amount of thirty cents ($0.30), plus 5% of the total credit card transaction, exclusive of sales or other taxes collected. For illustrative purposes only, if a user places $25.00 in the "tip jar," then Author/Publisher shall receive $18.45 calculated as follows: $25.00 - $5.00 - $.30 – $1.25 = $18.45. All fees and revenues payable to NoiseTrade shall be collectively referred to as "Service Fee." Author/Publisher shall maintain a PayPal account at all times during the Term of this Agreement and NoiseTrade shall remit to Author/Publisher, via such PayPal account, Author/Publisher’s portion of any tips received from users and intended for Author/Publisher. In the event Author/Publisher, for any reason, does not maintain a PayPal account at all times during the Term of this Agreement, NoiseTrade shall have the right, in its sole discretion, to donate to a charity (or charities) of NoiseTrade’s choosing, Author/Publisher’s portion of any tips received from users and intended for Author/Publisher.
Author/Publisher hereby further warrants and represents that Author/Publisher shall not use in connection with the Services any materials that: conflict with or violate any local, state, federal or international laws, the rights of third parties or infringe on rights held by third parties including, without limitation, trademarks, copyrights, patents, right of publicity and right of privacy; or may be libelous, slanderous, defamatory, offensive, obscene, pornographic or unlawful material, nor otherwise violate or infringe any other right of any person or entity, as determined in NoiseTrade's sole and absolute discretion.
If, at any time during the term of this Agreement, NoiseTrade receives notification alleging that any material used by Author/Publisher infringes upon any third party’s rights and/or violates any laws and/or if Author/Publisher uses in connection with the Services or NoiseTrade is aware that Author/Publisher has used or is using materials in connection with the Services that contain or are alleged to (i) contain any libelous, slanderous, defamatory, offensive, pornographic, or unlawful materials, (ii) violate any third party rights or (iii) be in violation of any local, state, federal or international laws (e.g. copyright, trademark, Children's Online Privacy Protection Act), (collectively the "Non-Permissible Materials") then without limiting any other rights or remedies it may have, NoiseTrade shall have the right, in its sole and absolute discretion, to remove the offending materials and/or cease the provision of the Services to Author/Publisher and terminate this Agreement. In the event of termination by NoiseTrade under this provision, all Service Fees due under this Agreement shall become immediately due and payable to NoiseTrade.
Author/Publisher shall comply with all laws and regulations applicable to user data collection, data disclosure, and data use practices. Unless agreed to otherwise, NoiseTrade and Author/Publisher shall jointly own all user data collected from the Services.
Author/Publisher shall and does hereby indemnify, save, defend and hold NoiseTrade and its owners, officers, directors, employees and agents harmless from any and all liabilities, obligations, losses, claims, damages, costs, charges or other expenses of any kind (including attorney's fees and court costs) arising out of result from any breach or alleged breach or any claim by a third party which is inconsistent with any of the warranties, representations, covenants or agreements made by Author/Publisher in this Agreement.
This Agreement shall commence on the completion of the Author/Publisher login and acceptance by NoiseTrade and shall remain in force until Author/Publisher cancels this Agreement upon written notice to NoiseTrade or NoiseTrade terminates in accordance with its rights to terminate under this Agreement. NoiseTrade may, in its sole discretion, increase the Service Fee at anytime, provided however that Author/Publisher shall receive prior notice of any increase and be given an opportunity to terminate this Agreement. NoiseTrade's failure to provide notice of any Service Fee increase shall not be deemed a breach of this Agreement.
This Agreement contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous or contemporaneous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. All of the recitals to this Agreement are hereby deemed part of this Agreement. This Agreement may not be altered, modified, amended, changed, rescinded or discharged in whole or in part, except by written agreement executed by Author/Publisher and NoiseTrade. For purposes of this provision, execution is intended to include email correspondence between Author/Publisher and NoiseTrade.
This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Tennessee applicable to agreements made and to be wholly performed therein, without regard to its conflicts of law principles. The venue for any action, suit or proceeding arising from or based upon this Agreement shall be the appropriate state and federal courts located in the county of Davidson in the State of Tennessee. Accordingly, the parties agree that any action, suit or proceeding arising from or based on this Agreement shall be commenced in and determined by those appropriate federal and state courts located in said state and county. If any provision of this Agreement shall for any reason be held invalid or unenforceable by a court of competent jurisdiction, all other provisions shall continue in full force and effect. No waiver of any provision of or default under this Agreement shall affect NoiseTrade's right thereafter to enforce such provision or to exercise any right or remedy in the event of any other similar or dissimilar default. If the performance of any part of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes, provided that the party claiming force majeure has taken all reasonable measures to avoid such causes. The rights and remedies of NoiseTrade as set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to it in law or in equity. Except for indemnification obligations hereunder, neither party hereto will be liable for consequential, exemplary, special, incidental or punitive damages under any circumstances. NoiseTrade shall not be liable to Author/Publisher or any third parties for any damages or losses sustained, directly or indirectly, if the secured portion of the Services is accessed by a third party. NoiseTrade's liability to Author/Publisher for any and all matters related to this Agreement shall not exceed the total amounts paid by Author/Publisher to NoiseTrade hereunder. All provisions of this Agreement related to Author/Publisher's warranties, proprietary rights, indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement. Sections relating to Author/Publisher's representations, warranties, and duty to indemnify shall survive the expiration or termination of this Agreement.
Author/Publisher agrees and acknowledges that Author/Publisher has read this Agreement and by checking the box marked "I have read and agree to NoiseTrade's Author/Publisher Agreement" agrees to be bound thereby and agrees that this Agreement creates a binding contract obligation enforceable in accordance with its terms.